Davis v. State

Decision Date18 October 1926
Docket Number26988
CourtMississippi Supreme Court
PartiesDAVIS et al. v. STATE. [*]

Division A

Suggestion of Error Overruled Dec. 13, 1926.

APPEAL from circuit court of Prentiss county, HON. C. P. LONG Judge.

Chris Davis and others were convicted of attempting to manufacture intoxicating liquor, and they appeal. Reversed and remanded.

Judgment reversed and cause remanded.

J. E. Berry, for appellants.

I. Chris Davis is entitled to an acquittal under the law. It is a case where his homestead rights are involved and where a search was made of his homestead premises without his consent or knowledge. That the law forbids the invasion of one's premises without a search warrant has been overwhelmingly determined by this court in a number of cases. Tucker v. State, 128 Miss. 211, 90 So. 845; Smith v. State, 133 Miss. 730, 98 So. 344; McCarthy v. Gulfport, 134 Miss. 632, 99 So. 501; Cuevas v. Gulfport, 134 Miss. 640, 99 So. 503; Taylor v. State, 134 Miss. 110, 98 So. 459; Rignall v. State, 134 Miss. 169, 98 So. 444; Falkner v. State, 134 Miss. 253, 98 So. 691; Butler v. State, 135 Miss. 885, 101 So. 193; Jourdan v. State, 135 Miss. 785, 100 So. 384; Wells v. State, 105 Miss. 764; 100 So. 674; Orick v. State (Miss.), 105 So. 465; Gardner v. State, (Miss.), 105 So. 475; Ross v. State (Miss.), 105 So. 846; Harold v. State (Miss.), 106 So. 268; Sanders v. State (Miss.), 106 So. 822; Nicaise v. State (Miss.), 106 So. 817.

II. The record clearly shows that the parties were entitled to separate trials and they asked for this right before being arranged.

III. Witness Abb Bennett says that he talked with two witnesses some time after the crime is said to have occurred and that Bud Davis, not the defendant here, did the talking. Abb said that he gathered from Bud that they, not saying who, were going to make a run. In other words, Abb Bennett said that his impression was that Bud Davis said that if the liquor was ripe then they, never saying who, would make a run.

In the first place, it is not shown that this appellant heard the conversation and, in the second place, no direct charge is made against him. There were four parties but they are not all charged directly. Now is Chris Davis guilty because he is said to be silent in the first place and then is he guilty because he speaks in another place?

Friday & Windham, also, for appellants.

I. The court erred in refusing to sustain a motion for a severance. Section 1490, Code of 1906 (section 1248, Hemingway's Code). Whether or not severance shall be granted is no longer discretionary with the trial court, provided the statute is complied with in making application therefor. We think the holding of this court in Malone v. State, 77 Miss. 812, is decisive.

II. Under many other holdings of this court, the officer's testimony was clearly inadmissible for the reason that this evidence was obtained through an illegal search, there being no warrant ever issued authorizing the search. And it cannot be argued that the evidence was obtained following an arrest of one committing a felony, because the record shows that no arrest was made until after an indictment had been returned.

III. The testimony of the witness Bennett is incompetent and inadmissible. While he attempted to detail an alleged confession made by the defendants, his entire testimony consists of his own opinions based upon, and conclusions drawn from, the statements made to him. Nowhere does he attempt to state what appellants said to him to warrant these opinions and conclusions that he terms "my understanding." Had he given to the jury the statements as they were made to him by the appellants, it is very probable that the jury would have had a different "understanding." Coon v. State, 1 Morris State Cases 455, 13 S. & M. 246; Wharton's Criminal Evidence (3 Ed.), p. 1295, sec. 622h; Ellis v. State, 65 Miss. 44, 3 So. 188.

Rufus Creekmore, Special Assistant Attorney-General, for the state.

I. The motion for a severance. In support of the contention that the lower court erred in refusing to sustain the motion of Bud Davis for a severance, appellants cite section 1,248, Hemingway's Code and Malone v. State, 77 Miss. 812, which announce the principle that where a motion for a severance is made by one of the defendants jointly indicted and the court's attention has been called to this fact before the defendant was arraigned, it thereupon becomes the duty of the court to grant to this defendant a separate trial. This principle is conceded. But the difficulty is that the record in this case fails to show that the attention of the court was directed to this fact before the defendant was arraigned. To our mind it seems that this is one of the unfortunate instances which often arise in the trial of cases where, through some oversight, either by the clerk or some of the lawyers in the case, a proper order fails to be placed on the minutes of the court. Collier v. State, 106 Miss. 613, 64 So. 373.

II. The confession. As to the testimony of A. B. Bennett with reference to the statement made by Bud Davis in the presence of Chris Davis and Boy Davis, appellants argue first that the witness did not detail the statements as made by Bud Davis, but gave only his opinions and conclusions as to what these statements meant and especially object to the use by the witness of the words "my understanding." By a reading of the testimony of this witness it will be seen that he uses the word "understanding" in the sense of recollection.

In the present case the court decided the statements made by the defendant were admissible in evidence. This being the case, there can be no prejudice to the right of the defendant by reason of his failure to have a hearing first in the absence of the jury, because the same result would have been reached and the jury would have heard precisely the same testimony as they did hear in this case.

There is a vast difference between a confession and statements made by a party accused from which his guilt may be inferred, and the rules of admission into evidence of a confession are not applicable to such cases. Richberger v. State, 90 Miss. 806; Irving v. State, 92 Miss. 662; Pringle v. State, 108 Miss. 802, 67 So. 455.

III. The search warrant. With reference to Boy and to Bud Davis there can be no question but that the testimony was admissible, because the land on which the still was found did not belong to them, nor did they have any interest in or right to the possession of the same. Harris v. State, 98 So. 349; Falkner v. State, 98 So. 691; Lee v. City of Oxford, 99 So. 509.

With reference to this defendant, Chris Davis, we submit that the same rules of law are applicable. The property did not belong to him, nor was he renting the same from Rutherford. It is true that he had the permissive use of the land, but he had not legal right to the possession of it, nor control over it, and could be ousted at the mere wish of Rutherford. The testimony shows that he was permitted to use it as a pasture by the owner.

Then, too, he could not possibly have been injured or prejudiced by any testimony which was offered by the state's witness with reference to what they found through the search, because this defendant, Chris Davis, took the witness stand in his own behalf and there admitted all of the facts which were testified to by the officers and which facts were obtained by the alleged search of the premises by them. Blowe v. State, 130 Miss. 112, 93 So. 577.

OPINION

COOK, J.

The appellants, Chris Davis, Bud Davis, and Boy Davis, were jointly indicted for attempting to manufacture intoxicating liquor, and were convicted and sentenced to the penitentiary for a term of three years, and from this judgment this appeal was prosecuted.

From the testimony offered at the trial, it appears that the sheriff of the county and another officer discovered a still and two or three barrels of mash in an inclosed pasture. They secreted themselves near the still during the night and watched it until the following morning. A short while after sunrise, they saw Bud Davis pass near the still. He had a shotgun and appeared to be hunting. In a short while he returned to the still accompanied by Chris and Boy Davis and another party, whom they were unable to identify, Chris and Bud Davis stopped a moment at the still, and then...

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